Beruflich Dokumente
Kultur Dokumente
3d 285
Appeal from the United States District Court for the Eastern District of
Pennsylvania, Mary A. McLauglin, J.
James R. Radmore, Law Office of James R. Radmore, P.C., Philadelphia,
for Appellants.
Patrick L. Meehan, United States Attorney, Laurie Magid, Deputy United
States Attorney for Policy and Appeals, Virginia A. Gibson, Assistant
United States Attorney, Chief, Civil Division, Nancy L. Griffin, Assistant
United States Attorney, Philadelphia, for Appellees.
Before SCIRICA, Chief Judge, ROTH and MCKEE, Circuit Judges.
OPINION
ROTH, Circuit Judge.
placing of the mail. This is an issue of first impression in this Circuit After
careful consideration, we conclude that the District Court was correct in its
determination and will affirm.
I. Factual and Procedural History
2
On August 25, 2001, Dolan fell over letters, packages and periodicals placed by
a USPS employee on her porch. As a result of the fall, Dolan suffered serious
injury.
On February 7, 2003, the government filed its Rule 12(b)(1) motion to dismiss
for lack of subject matter jurisdiction. The Dolans responded, conceding that
the United States was the only appropriate defendant but otherwise opposing
the motion.
On March 19, 2003, the District Court granted the government's motion to
dismiss, holding that Barbara Dolan's claim was barred by 28 U.S.C. 2680(b).
The District Court also dismissed Michael Dolan's claim because it was
derivative of his wife's claim.
On appeal, the Dolans concede that Michael Dolan did not timely exhaust his
administrative remedies. Thus, the only the question before us is whether the
District Court properly dismissed Barbara Dolan's claim for lack of subject
matter jurisdiction.
Because the Dolans brought their claim under the FTCA, the District Court had
jurisdiction pursuant to 28 U.S.C. 1346(b). We have appellate jurisdiction
under 28 U.S.C. 1291. Our review is plenary where the District Court
dismisses for lack of subject matter jurisdiction. Gould Elecs., Inc. v. United
States, 220 F.3d 169, 176 (3d Cir.2000).
III. Discussion
At issue here is an exception to the FTCA which provides that this waiver shall
not apply to "[a]ny claim arising out of the loss, miscarriage, or negligent
transmission of letters or postal matters." 28 U.S.C. 2680(b). Dolan contends
that the words "negligent transmission" in 2680(b) do not include a USPS
employee's negligent placing of the mail. In essence, she invites us to read
2680(b) as only providing the government immunity for mail lost, delayed or
damaged in transit.
10
Relying on United States v. Yellow Cab Co., 340 U.S. 543, 554, 71 S.Ct. 399,
95 L.Ed. 523 (1951), Dolan argues that, under the FTCA, immunity is
generally waived in favor of the injured party. Dolan also cites 2680(b)' s
legislative history as discussed in Suchomajcz v. United States, 465 F.Supp.
474, 476 (E.D.Pa.1979), in support of her more narrow definition of "negligent
transmission." She points out that the District Court in Suchomajcz noted that in
passing 2680(b) "Congress was concerned with shielding the courts from the
potential landslide of lawsuits that might be generated by the unavoidable
mishaps incident to the ordinary accepted operations of delivering millions of
packages and letters each year." Id., 465 F.Supp. at 476 (quoting Birnbaum v.
United States, 436 F.Supp. 967, 974 (E.D.N.Y.1977)). Dolan maintains that this
history indicates Congress only intended 2680(b) to protect the government
from claims resulting from the loss or delay of mail, not torts resulting from
negligently placed mail. While she concedes that Bono v. United States, 145
F.Supp.2d 441 (D.N.J.2001), the only prior case in this Circuit to substantially
address the facts and issue at hand, interpreted 2680(b) to bar the type of suit
she now brings, Dolan argues that both Bono court and the District Court in this
case erred in reading the statutory definition of "transmission" to include
negligent placing or delivery of the mail. Finally, she alleges that the FTCA's
underlying objectives are not served by a broad definition of "negligent
transmission." See Kosak v. United States, 465 U.S. 848, 858, 104 S.Ct. 1519,
79 L.Ed.2d 860 (1984).
11
While we note that the Second Circuit Court of Appeals recently held in Raila
v. United States, 355 F.3d 118 (2d Cir.2004), that the words "negligent
transmission" are limited to the loss or miscarriage of postal material, we
disagree with that holding. To the extent that "negligent transmission" is
ambiguous at all, any ambiguities in the language of a purported waiver of
sovereign immunity must be construed in favor of the government. Lane v.
Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996). Construing
2680(b) in such a way is made all the easier by the statute's expansive
language. The phrase "[a]ny claim arising out" evinces Congress's intent to
broaden rather than limit the exception for "negligent transmission of letters or
postal matter." 1
12
13
We thus agree with the District Court that there is nothing out of the ordinary
about a USPS employee delivering the mail or placing the mail on the porch
instead of in the mailbox. Dolan's accident was incidental to the USPS
employee placing the mail on the porch. Because USPS employees do not
monitor how the mail they deliver is retrieved by third-parties, mishaps related
to the retrieval of the mail may be unavoidable.
14
IV. Conclusion
15
For the foregoing reasons, we will affirm the judgment of the District Court.
Notes:
1